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Official Language Requirements for Transfer Payments

Considerations to support transfer payment specialists in federal institutions

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Official Language Requirements for Transfer Payments [PDF version - 456 KB]

Introduction

This Information Note was developed collaboratively between the Department of Canadian Heritage (PCH) - Official Languages Branch and the Treasury Board of Canada Secretariat (TBS) - Transfer Payment Policy centre and the Official Languages Centre of Excellence. The primary objective of this Information Note is to provide clarity regarding official languages requirements as they relate to the design, delivery, and management of transfer payment programs.

The note summarizes official languages obligations that pertain to transfer payments and how official languages obligations are addressed in the Transfer Payment policy instruments; it provides guidance on how to apply an official languages lens to transfer payments; and lists key resources for departmental managersFootnote 1. Additional considerations can be found in Annex A; Questions and Answers in Annex B, and Best Practices in Annex C.

What are departmental managers being asked to do?

Every department, considered as such under the Financial Administration Act, has obligations under the Official Languages Act (OLA); some of those obligations apply to transfer payments. There are two parts of the OLA that are particularly important to transfer payments: Part IV and Part VII. Part IV outlines federal institutions’ duties when communicating with and providing services to the public whereas Part VII outlines the obligation of federal institutions to take positive measures to enhance the development and vitality of English and French linguistic minority communities in Canada and to foster the full recognition and use of English and French in Canadian society.

This information note considers the OLA as of September 1, 2022. Consequently, the guidance does not reflect any changes that may be made due to the official languages reform efforts currently underway. The information note is subject to change once modernization is completed and Bill C-13 (An Act for the Substantive Equality of Canada's Official Languages) obtains royal assent.

To meet current official languages obligations, departmental managers must first determine how official languages requirements apply to the design and delivery of transfer payment programs, then take necessary measures to ensure compliance. In addition to the obligations set out in the OLA, further obligations derived from policies, such as the TB – Policy on Official Languages, and/or provincial and territorial legislation should be applied, as applicable, to recipients.

Please note that this information note does not constitute legal advice. For such advice, please consult the legal services unit of your federal institution, which, when needed, will contact the Official Languages Directorate of Justice Canada.

Official Languages Act

The OLA aims to ensure that English and French are recognized as Canada’s official languages and that they both have equal status. Parts IV and VII of the OLA are key sections to consider with respect to transfer payments.

Part IV

Part IV (Communications with and Services to the public) specifies that federal institutions must provide services in English and French, as requested by the public where there is significant demand and where the nature of the office justifies it. The Official Languages (Communications with and Services to the Public) Regulations specify the framework of such circumstances. Regardless of the preferred official language, the OLA requires that the services provided must be of equal quality. The Official Languages Centre of Excellence at TBS ensures Part IV of the OLA is implemented in a coordinated manner across the federal government.

Table 1: Applying Part IV of the Official Languages Act
OLA section Sample application Relevant resources
PART IV – Communications with and services to the public

Are communication materials available in both English and French?

Are services (e.g., public announcements, information booth, etc.) provided in both English and French (for instance by having adequate bilingual staff to meet operational requirements)?

Does the office’sFootnote 2 language designation (to provide services in either English or French or both) reflect the correct application of the Official Languages (Communications with and Services to the Public) Regulations?

(See Annex C for more)

Part VII

Part VII of the OLA outlines the obligations of federal institutions to take positive measures to enhance the vitality of official language minority communities (OLMCsFootnote 3,Footnote 4) and to support and assist their development; and to foster the full recognition and use of English and French in Canadian society. The Official Languages Branch at PCH is responsible for coordinating the implementation of Part VII across the federal government. PCH is responsible for encouraging and promoting a coordinated approach to the federal institution implementation of the commitments set out in section 41 (within Part VII) of the OLA.

Table 2: Applying Part VII of the Official Languages Act
OLA section Sample application Relevant resources

PART VII – Advancement of English and French

41.(1) (a) OLMC community vitality

41.(1) (b) fostering the full recognition and use of both English and French

What is the language profile of the community that will benefit/receive the transfer payment program (see Official Language Minority Communities Dashboard)?

Will official language minority communities be invited to participate in the funded project or activities?

Is there a potential to implement positive measures in the context of the transfer payment program?

Could this transfer payment program potentially have direct negative impacts on the implementation of the Government’s commitments under Part VII and, if so, what are the possibilities for mitigating those negative impacts?

(See Annex C for more)

External Links:

Transfer payment policy instruments and responsibilities

Both the TB - Policy on Transfer Payments and the TB - Directive on Transfer Payments make reference to incorporating official languages considerations in the design, delivery, and management of transfer payment programs. The TB - Policy on Transfer Payments and TB - Directive on Transfer Payments assign responsibilities to deputy heads and departmental managers responsible for preparing funding agreements when transfer payment programs support activities that benefit members of both official language communities. The following table explains these relevant responsibilities:

Table 3: Responsibilities
Deputy Heads
Transfer payment activity Policy instrument Requirement
Design and Delivery TB – Policy on Transfer Payments: 5.4.3 Ensuring, when transfer payment programs support activities that benefit members of both official language communities, that their design and delivery respect the obligations of the Government of Canada as set out in Part VII of the OLA and that services and benefits are made available in both official languages in compliance with the OLA.
Departmental Managers
Transfer payment activity Policy instrument Requirement
Design: Core design elements TB – Directive on Transfer Payments: Appendix B.22 The manner in which the obligations of the Government of Canada set out in the OLA are to be considered and, where relevant, applied in designing the transfer payment program.
Design and Delivery: Terms and Conditions TB – Directive on Transfer Payments: Appendices D.10 and E.12

In cases where the program supports activities that may have an impact on members of either official language community:

  • a description, where appropriate, of how the transfer payment program will respect the obligations of the Government of Canada set out in Part VII of the OLA; and
  • a description, where appropriate, of how the services or benefits will be made available in both official languages in accordance with the OLA.
Delivery: Funding agreements

TB – Directive on Transfer Payments:

Appendices F.16 and G.37

In cases where the terms and conditions have identified that the transfer payment program may have an impact on members of either official language community:

  • a provision, where appropriate, outlining the manner in which the recipient's activities will support the Government of Canada's obligation to enhance the vitality of the official language minorities in Canada and support and assist their development and foster the full recognition and use of both English and French in Canadian society; and
  • a description, where appropriate, of how the services or benefits will be made available in both official languages in accordance with the OLA.

Applying an official language lens to transfer payment activities

Based on these requirements, those responsible for the design, delivery, and management of transfer payment programs are to apply an official languages lens in various transfer payment activities, such as the development of core design elements, terms and conditions, and funding agreements with recipients.

It is important to note that distinctions exist between situations where a federal institution retains the services of a third party to deliver services on its behalf and situations where a federal institution provides a grant or transfer payment to a body (private, public or institution) to fund certain activities and initiatives of the recipients that help achieve the objectives and outcomes of the transfer payment program.

When a federal institution retains the services of a third party to deliver a government service, the service provider is acting on behalf of the federal institution and the institution must ensure that the communications and services are provided in both official languages in any situations where the federal institution would itself be required to do so. This is a requirement of section 25 (Part IV) of the OLA. The contract for services must accordingly include linguistic clauses specifying the requirement for the third party to communicate and provide services in both official languages.

When a federal institution provides a grant or transfer payment to a body (private, public, other institution), the recipient of the transfer payment is not acting on behalf of the federal institution. Therefore, communications and services provided within the context of a transfer payment program are not subject to requirements under Part IV of the OLA. However, under Part VII of the OLA, all federal institutions must take positive measures to enhance the vitality of the English and French linguistic minority communities in Canada, support their development, and foster the full recognition and use of both English and French in Canadian society. In this context, each federal institution must ensure that in cases where a transfer payment program supports activities that may have an impact on members of OLMCs, the core design of the program meets OLA obligations under Part VII. A common way to achieve this is by including a clause in the grant or contribution agreement stipulating that the funding recipient must offer some or all its services and communications in both official languages (see Annex C for Best Practices in program design).

When designing a transfer payment program, federal institutions may wish to consult legal services to verify that a transfer payment is an appropriate choice of instrument (i.e., that the institution is not in fact procuring a service) and that the risks of creating a situation of agency are mitigated.

Core design elements

Appendix B of the TB - Directive on Transfer Payments sets out the core design elements of a transfer payment program. Among these elements, departmental managers are expected to assess the OLA requirements and document evidence on how these were considered in the design of the transfer payment program. The requirements in the TB - Directive on Transfer Payments are complemented by the TBS - Guideline on the Directive on Transfer Payments (section 8.5), which includes an expectation that departmental managers, “assess and document the manner in which the obligations of the Government of Canada set out in the OLA are to be taken into account and, where relevant, how they are to be applied in designing the transfer payment program.”

Departmental managers are encouraged to use the checklist of the Guide for Drafting Memoranda to Cabinet — Official Languages Impact Analysis, developed by PCH in collaboration with TBS and Justice Canada, for the purposes of meeting the transfer payment requirements to assess the OLA requirements for a particular program. It includes a comprehensive analysis grid offering various considerations to help assess elements that may have an impact on official languages, whether positive or negative, as well as mitigating strategies to consider, where appropriate.

In order to meet official languages obligations, departmental managers should look at how official languages requirements apply to the design and delivery of transfer payment programs. This may also involve other policies, such as the TB – Policy on Official Languages and related instruments, and/or provincial and territorial legislation as applicable.

Treasury Board Submission Official Languages Impact Analysis

As part of the Treasury Board Submission process, institutions must determine whether the initiatives in the submission will have implications for official languages. Institutions can use the OL checklist to help identify obligations set out in the OLA, the Official Languages (Communications with and Services to the Public) Regulations, as well as the TB – Policy on Official Languages and related policy instruments. Where official languages implications are foreseen, an official languages impact analysis is required to demonstrate compliance with:

Official Language Impact Analysis

The Official Language Impact Analysis considers the official languages obligations of the institution and indicates the measures that will be taken to ensure they will be met. More details on conducting an official languages impact analysis for TB submissions can be found in the Guidance on Official Languages Impact Analysis. The Guide for Drafting Memoranda to Cabinet — Official Languages Impact Analysis also provides a checklist that may help institutions consider their official languages obligations.

Official Language Minority Communities Dashboard

The Official Language Minority Communities Dashboard is an interactive tool developed by PCH that presents useful data gathered through the Census for all provinces, territories and economic regions in the country. The tool uses a simple and attractive interface to display the data more effectively. The data in this dashboard provides location-specific information about OLMCs that federal institutions can use to make informed decisions as they design programs and services and their delivery. If you browse through this site, not only will you find the OLMC Dashboard, but also a section about the project background as well as information about the sources and methodology.

Program Terms and Conditions

In cases where a transfer payment program supports activities that may have an impact on members of either official language community, departmental managers that prepare the terms and conditions (Ts&Cs) of a transfer payment program must ensure they address the elements outlined in Appendix D and Appendix E of the TB – Directive on Transfer Payments. Note that when a recipient is another order of government (as defined in the TB - Policy on Transfer Payments), the elements outlined in Appendix I of the TB - Directive on Transfer Payments apply. Generally, the Ts&Cs are to include a description of the following, where appropriate:

In determining how the payment program will respect the obligations of the Government of Canada set out in Part VII of the OLA, the department is to determine, amongst others, if there is a potential to take positive measures in the context of the transfer payment program and if direct negative impacts on the implementation of the Government’s commitments under Part VII are foreseeable and can be mitigated.

Funding agreements

In cases where the transfer payment program supports activities that may have an impact on members of either official language community, departmental managers that prepare funding agreements with recipients must address the elements outlined in Appendix F and Appendix G of the TB - Directive on Transfer Payments. Note that when a recipient is another order of government (as defined in the TB - Policy on Transfer Payments), the elements outlined in Appendix I of the TB - Directive on Transfer Payments apply.

Generally, funding agreements are to include a description of the following, where appropriate:

Table 4: Exploring the official language lens in transfer payment activities
Transfer Payment Activity Official language implication
Core design elements

Appendix B of the TB - Directive on Transfer Payments sets out the core design elements of a transfer payment program. Among these elements, departmental managers are expected to assess the OLA requirements and document evidence on how these were considered in the design of the transfer payment program.

The Official Language Minority Communities Dashboard is an interactive tool developed by PCH that provides location-specific information about OLMCs that federal institutions can use to make informed decisions as they design programs and services and their delivery.
Treasury Board Submission

When developing a Treasury Board submission, institutions must consider whether the initiatives in the submission will have implications for requirements under the OLA and related policies. Where official languages implications are foreseen, an official languages impact analysis is required to demonstrate compliance with:

  • the OLA
  • the TB – Policy on Official Languages
  • the Official Languages (Communications with and Services to the Public) Regulations
  • related policy instruments

For guidance regarding the drafting of the analysis, please consult the Guidance on Official Languages Impact Analysis.
Program Terms and Conditions In cases where a transfer payment program supports activities that may have an impact on members of either official language community, departmental managers who prepare the terms and conditions (Ts&Cs) of a transfer payment program, must ensure they address the elements outlined in Appendix D and Appendix E of the Directive on Transfer Payments. Note that when a recipient is another order of government (as defined in the TB - Policy on Transfer Payments), the elements outlined in Appendix I of the TB - Directive on Transfer Payments apply.
Funding agreements In cases where the transfer payment program supports activities that may have an impact on members of OLMCs, departmental managers that prepare funding agreements with recipients must address the elements outlined in Appendix F and Appendix G of the TB - Directive on Transfer Payments.
Table 5: Resources for consideration
Category Resource(s)
Legislation and Policy instruments
Guidance
Communities

Enquiries

For questions on official languages, we recommend that you first contact your department’s person responsible for official languages and its Section 41 coordinator, your legal services, your official languages policy team, and finally, as applicable, your centre of expertise for grants and contributions.

Afterwards, for questions related to Part IV of the OLA please consult the Official Languages Centre of Excellence at TBS at: OLCEInformationCELO@tbs-sct.gc.ca.

For questions regarding Part VII considerations, please consult the Official Languages Branch of PCH at: portail41-gateway41@pch.gc.ca.

Annex A: Additional considerations

  1. Official Languages Act
    • PART IV – Communications with and services to the public
      • Reflection questions
        • Have the official languages obligations concerning communications with and services to the public been considered?
        • Should the content of the program be adapted to take into consideration the different needs of OLMCs?
        • Is this a program that seeks to provide benefits over the short, medium, or long term?
        • Is this a program that creates a situation where the recipients could be found to act on behalf of the department within the meaning of section 25 of the OLA? If so:
          • Should changes to the program be contemplated to minimize the risk of such a finding?
            • Should a service contract be contemplated instead of a funding agreement under a transfer payment program? Are the contractual clauses contemplated for insertion in a funding agreement sufficient to ensure compliance with the obligations of the federal institution under Part IV?
    • PART VII – Advancement of English and French: 41(1)(a) OLMC community vitality and 41(1)(b) fostering the full recognition and use of both English and French.
      • Reflection questions
        • Where the initiative targets regions where OLMCs are located and their particular needs and priorities are known, will measures be taken to address them?
        • Have you consulted sources of evidence such as analyses, documentary or statistical research, academic studies, or government reports such as those of the House of Commons and Senate Standing Committees on Official Languages, as well as the Annual Reports on Official Languages of the President of the Treasury Board and the Official Languages Minister; on issues concerning OLMCs; and the use and status of English and French in Canadian society? Have these sources of evidence informed decision-making? Have OLMCs been consulted? Have other organizations that work with and/or represent OLMCs been consulted [e.g., Fédération des communautés francophones et acadienne (FCFA), and Quebec Community Groups Network (QCGN)]?
        • Where the initiative includes transfer payments to non-governmental organizations, have positive measures been taken to ensure that OLMCs have access to the program?
          • Are direct negative impacts on the implementation of the Government’s commitments under Part VII foreseeable and, if so, can they be mitigated? Note that it is the institution which is responsible for the positive measure and that the Part VII obligation is not transferred in the way the Part IV (s.25) obligation is.
  2. Official languages clauses in funding agreements
    • The decision to include official languages clauses in funding agreements depends on various factors. Some factors that might influence this decision are as follows:
      • The value of the funding (i.e., % in relation to total project/activity cost)
      • The amount of funding (i.e., dollar amount/materiality)
      • The services to the public
      • The recipient profile:
        • OLMC organizations, or that represent OLMCs
        • institutions or organizations that provide services in both official languages
        • organizations that work in English and in French or that group together Anglophones and Francophones
        • organizations that promote the learning of English or French as a second language
        • organizations likely to promote Canada’s bilingual image, at home and abroad
  3. Official Language Minority Communities
    • Different organizations like FCFA and the QCGN represent OLMCs nationally and work to promote awareness. These organizations are a good source of information on the needs and priorities of OLMCs or collaboration for transfer payment initiatives.
      • Reflection questions
        • Is the transfer payment program available to OLMCs and/or are there assessment or funding criteria tailored specifically to OLMC applicants?
        • Does the program provide in-kind support for organizations representing OLMCs? If so, how are their needs identified?
  4. Positive measures
    • One key consideration in Part VII of the OLA is the notion of positive measures (in subsection 41 (2)). A positive measure is an action taken with the intention to benefit OLMCs. It should be a concrete action taken with the intention of benefiting official language minorities in Canada and/or the promotion of both official languages within Canadian society. If the action taken is a requirement of other sections of the OLA, then it cannot be deemed a positive measure under Part VII. This idea is explained further in the Guide for Drafting Memoranda to Cabinet — Official Languages Impact Analysis as follows:
      • “To illustrate the latter point, the translation of an institution’s website cannot constitute a positive measure under Part VII because it is an obligation under Part IV, Communications with and services to the public, and does not specifically target OLMCs, even if OLMCs benefit from the translated information.”
  5. Review or redesign of existing transfer payment programs
    • As part of the review, redesign or update of a transfer payment program, official language considerations need to be reviewed and the program adapted as appropriate.
      • Reflection questions
        • Does your program provide for official languages clauses in transfer payment agreements to enhance the vitality of the English- and French-speaking minority communities in Canada, support and assist their development and/or foster the full recognition and use of both English and French in Canadian society?
          • In the event where official languages clauses already exist, what kind of accountability and monitoring exists, if any? How do the results inform subsequent work?
        • Does your program include official languages measures either in the application forms or in the exchanges of correspondence with potential recipients?
        • Have representatives of OLMCs been involved in project development and implementation?
        • Are contemplated changes to the program expected to have direct negative impacts on the implementation of the Government’s commitments under Part VII and if so, can these impacts be mitigated?

Annex B: Questions and answers

  1. With whom should I communicate in my federal institution for information on official languages clauses?
  2. What are the requirements for provinces and territories?
    • Appendix I of the TB - Directive on Transfer Payments outlines requirements for the terms and conditions (Ts&Cs) and funding agreements with provinces and territories. Therefore, there is a responsibility for departmental managers to ensure that the applicable obligations of the OLA are respected when transfer payment programs support activities that have the potential to benefit members of OLMCs or to promote English and French.
  3. Should each federal institution standardize its official language clauses or wording in transfer payment program terms and conditions?
    • Federal institutions and transfer payment programs vary in terms of objectives, policies, and context. Consequently, it may not always be possible to standardize the language. We encourage institutions to complete a thorough official languages analysis to determine the potential impact of their mandate and activities on OLMCs and on the promotion of English and French, in order to decide on the appropriate language for the transfer payment program Ts&Cs.
  4. Are Part IV and Part VII obligations automatically transferred to the recipient because of the funding agreement?
    • The obligations under Part VII of the OLA rest solely with federal institutions. The obligations imposed on the recipient are essentially contractual in nature and are based on the official language clauses included in the funding agreement. This is why the inclusion of official language clauses is important and considered a positive measure.
    • The answer for Part IV, is very similar. The obligation rests with the federal institution to ensure that the third party acting on its behalf is compliant with all obligations and any requirements included in the agreement. These contractual obligations and requirements should be drafted to ensure that the federal institution complies with all of its obligations under Part IV.
  5. Who is responsible for drafting official languages clauses in funding agreements?
    • It is the program, in discussion with the funding recipient where possible, that is responsible for drafting official languages clauses in funding agreements. If the program has too many recipients to discuss with each one, a standard clause or clauses may be used. Program officers are responsible for the operationalization and implementation of official language clauses and for monitoring compliance.
  6. How do departmental managers develop the official languages clauses included in the funding agreement and assess whether sufficient components are covered?
    • Departmental managers must review the funding request in question to assess its potential impact on Part VII of the OLA. This includes determining what the funds will be used for, whether members of OLMCs could or should be part of the target audience, whether the activities included have the potential to contribute to OLMC priorities (for an overview of these priorities, consult the websites of the FCFA – in French only – and the QCGN), and whether there is an opportunity to promote the full recognition and use of English and French in Canadian society.
    • The OLA leaves it to the discretion of federal institutions to choose the positive measures they take under part VII. The inclusion of official languages clauses is considered to be a positive measure; although the results or impacts may be desired, they cannot be guaranteed. Once Part VII has been considered and official languages clauses drafted, they should be discussed with the recipient organization for inclusion in the funding agreement.
  7. How can departmental managers implement the official languages considerations identified by the program or federal institution?
    • Departmental managers must be sure that official languages considerations found in key documents such as the terms and conditions, guidelines, applicant’s guide and, as applicable, the funding agreement for the program in question, are considered. They can demonstrate a clear understanding of these requirements by selecting relevant clauses and making sure these are included in the funding agreement, and communicated to and observed by recipients, where possible.

Annex C: Best practices

The following is a non-exhaustive list of possible elements to include in official languages clauses in the program design (Ts&Cs) and delivery (funding agreements).

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